Citation Nr: 9935763
Decision Date: 12/23/99 Archive Date: 12/30/99
DOCKET NO. 98-10 263 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in San Diego,
California
THE ISSUE
Entitlement to an effective date earlier than January 2,
1997, for service connection for postoperative residuals of a
laryngectomy for cancer of the larynx.
(The issues concerning clear and unmistakable error in
decisions of the Board of Veterans' Appeals in December 1985
and November 1987 will be addressed in a separate decision.)
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
W. R. Harryman, Counsel
INTRODUCTION
The veteran had periods of active service from February 1943
to November 1945 and from June 1953 to January 1955. The
record shows that he was a prisoner of war (POW) of the
German Government for nine months in 1944 and 1945.
This case came before the Board of Veterans' Appeals (Board)
on appeal from a decision of the Department of Veterans
Affairs (VA) Regional Office (RO) in San Diego, California,
in March 1998 which granted service connection for
postoperative residuals of a laryngectomy for cancer of the
larynx and assigned an effective date of January 2, 1997.
In October 1998, a hearing was held at the RO before C.W.
Symanski, who is a member of the Board rendering the final
determination in this claim and was designated by the
Chairman of the Board to conduct that hearing, pursuant to
38 U.S.C.A. § 7102(b) (West 1991).
FINDINGS OF FACT
1. A Board decision in December 1985 denied service
connection for a chronic disorder of the larynx, including
laryngeal carcinoma.
2. On reconsideration of the December 1985 decision in
November 1987, it was concluded that there was no obvious
error in the December 1985 Board decision.
3. A rating decision in March 1998 granted service
connection for laryngeal carcinoma, effective from January 2,
1997, on the basis of the receipt of new and material
evidence.
CONCLUSION OF LAW
An effective date earlier than January 2, 1997, for the grant
of service connection for postoperative residuals of a
laryngectomy for cancer of the larynx is not warranted under
the applicable regulatory criteria. 38 U.S.C.A. §§ 5107,
5110 (West 1991); 38 C.F.R. § 3.400(q)(1)(ii) (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Factual background
A review of the claims file discloses that rating decisions
in April and July 1947 and September 1955 granted service
connection for certain disabilities. A rating decision in
September 1965 denied service connection for laryngitis. In
March 1982, the veteran wrote requesting that his claim be
reopened, claiming that the laryngitis, pneumonia, pleurisy,
and malnutrition he had while he was a POW caused his
eventual laryngectomy. The veteran presented testimony at
personal hearings at the RO in December 1982 and December
1984 and before the Board in December 1983. An April 1983
rating decision granted service connection for malnutrition.
After a Remand to obtain additional medical records, the
Board denied the veteran's claim for service connection for a
disorder of the larynx by a decision in December 1985.
A rating decision in July 1986 found that the veteran had not
presented new and material evidence to reopen his claim and
he appealed that determination. In April 1986, the veteran
testified at a personal hearing at the RO. Another personal
hearing was conducted before the Board in December 1986, at
which time he requested that the Board reconsider the
December 1985 decision. In November 1987, the Board issued a
Reconsideration decision that affirmed the December 1985
decision, finding that there was no obvious error in that
decision.
Between the November 1987 Reconsideration decision and
January 1997, the veteran wrote numerous, basically redundant
letters to the RO, the Board, the Secretary (and, previously,
the Administrator), the President, various Senators and
Members of Congress, and other VA and Government personnel
regarding his case. Those letters essentially have expressed
disagreement with the previous denials of his claim by the
Board and general dissatisfaction with the consideration that
his requests, contentions and inquiries have received by VA
and other Government officials. The veteran's letters
primarily dealt with perceived injustices perpetrated against
him by VA, although many of the letters allege that the Board
in its decisions either did not apply the correct law or did
not properly apply the law regarding certain presumptions to
be accorded service connection claims by former POWs.
Several of the letters allege that he had yet to be afforded
a hearing in his case, as he had requested.
He wrote to an attorney at the United States Court of Appeals
for Veterans Claims (Court) in November 1989 and was advised
by an attorney for the Court that the Court had no
jurisdiction to consider his appeal, since the notice of
disagreement leading to the 1987 Board decision was filed
prior to November 18, 1988.
In March 1990, Arnold F. Payne wrote to President Bush
requesting his "consideration to intercede concerning the
needs" of the veteran. The letter referred to the veteran's
captivity as a POW, generally noted the conditions that POWs
in Word War II were forced to endure, and described some of
the medical problems that the veteran had during his POW
captivity and then subsequent to service (citing a newspaper
and "personal reports.")
Responding to one of the veteran's letters in which he
complained that he had never received a proper hearing, the
Board informed him in June 1992
If you have evidence which you believe
will support your case, you may wish to
use it in filing a reopened claim with
the Department of Veterans Affairs in
San Diego, California. You may then
request a personal hearing.
Several letters were received from the veteran between 1992
and 1996 in which he reiterated his continued discontent with
VA's previous determinations in his case and the lack of
proper consideration his claim had received. No additional
evidence was received and none of the letters expressed any
intent on the part of the veteran to reopen his service
connection claim.
In December 1996, the RO wrote the veteran inviting him to
attend an Ex-Prisoner of War Outreach Meeting that was
scheduled in his area in February 1997. The purpose of the
meeting was stated to be to explain the VA compensation and
medical benefits that are potentially available to veterans
and especially to former POWs, including recent changes in
the law and benefits, and to assist anyone wishing to file a
claim. The veteran responded in a letter received on January
2, 1997, that he would not be attending the meeting, because
he considered it "to be nothing more than a cleverly
orchestrated propaganda ploy in your efforts to diffuse
recent criticism of the V.A. now that the treatment of Gulf
War veterans has come to the fore." The letter also
referred (as did many others) to his having filed his claim
in May 1982 and to his having requested a hearing in light of
the "Former POW Benefits Act," claiming that the hearings
that had been conducted had not considered the Act. The
veteran expressed his continued contempt for the VA claims
adjudication process. A handwritten notation on the letter
made apparently by RO personnel indicates that the letter
contained no new evidence and raised no new contentions.
In a letter hand-dated January 3, 1997, the RO wrote to the
veteran, noting his "unhappiness with prior VA decisions
regarding the denial of your claim for laryngeal cancer."
The letter informed the veteran that a VA General Counsel
opinion provided for the possibility of service connection
for conditions as secondary to smoking and indicating that
"your condition may be related to smoking during service."
The RO further instructed the veteran as to the type of
evidence that would be helpful if he wished to pursue a claim
for service connection for his condition as secondary to
smoking. The veteran was told that the RO would begin
processing his claim when he provided instructions.
The veteran next wrote to the RO in a letter received on
October 8, 1997, requesting a social survey in conjunction
with his "case." In another letter, received by the RO on
November 24, 1997, he wrote responding to certain information
that had been requested by the RO in the January 1997 letter.
He indicated that he began smoking during service in 1942, at
which time he smoked 10-12 cigarettes per day. The veteran
stated that he stopped smoking after becoming a POW. He also
reported that he was hospitalized at a VA facility on three
occasions between 1945 and 1950 at which time cigarette
salesmen entered the wards with VA approval passing out
sample packs of cigarettes; at that time, he smoked only
periodically. The veteran noted in the November 1997 letter
that he had never before claimed that smoking was a
contributing factor to his problems, but stated that he now
realized that it could have been. He reiterated his
contention that the primary cause was the malnutrition he
endured during his captivity.
Subsequently, in December 1997, a VA compensation
examination, including a social survey, was conducted. The
social survey recorded the history of the veteran's POW
confinement, essentially as had been set forth previously.
The report also noted that it appeared that the veteran began
smoking in 1945 and smoked heavily until approximately 1950,
then periodically until he stopped altogether in 1966. The
social worker stated that it appeared that smoking was the
major way that he was able to deal with the anxiety and
nervousness that developed as a result of his POW
experiences. The VA physician who examined him recorded the
veteran's smoking history essentially as he had reported in
the November 1997 letter. He also noted that the veteran had
undergone a total laryngectomy in 1977 for throat cancer.
The report included a comment by the examiner stating that
The etiology of cancer of the larynx is
likely to be moderated by his severe
malnutrition and starvation while in the
service. He did smoke also in the
service and in the VA hospitals soon
after that. It is more likely than not
that these two factors, malnutrition,
causing decreased immunity, and smoking
in the service were the positive agents
for his laryngeal cancer.
A rating decision in March 1998 granted service connection
for postoperative residuals of a laryngectomy due to cancer
of the larynx and a laryngectomy scar with loss of muscle,
both effective from January 2, 1997. The veteran disagreed
with the effective date that was assigned, indicating that
his disability status was then no different in February 1997
than it had been in 1982.
The veteran testified at a personal hearing before the Board
at the RO in October 1998. He again stressed that he had
never had a hearing where Public Law 97-37 ("the POW
Benefits Act") had been taken into consideration. He cited
a section of that law for the proposition that the effective
date of the award "shall be the date of application or the
date on which the veteran became permanently and totally
disabled if the veteran applies for a retroactive award
within one year of such date whichever is to the advantage of
the veteran." The veteran essentially indicated that, since
he filed his claim in May 1982, service connection for the
service-connected disability should be effective from that
date.
Analysis
The record reflects that service connection for laryngitis
was denied by a rating decision in September 1965. Laryngeal
cancer had not yet been diagnosed at that time. In March
1982, he requested that his claim be reopened, asserting that
the laryngitis, pneumonia, pleurisy, and malnutrition he had
while he was a POW caused his laryngitis and subsequently
diagnosed laryngeal cancer. Based on the evidence then of
record, the Board denied service connection by a decision in
December 1985. By a Reconsideration decision in November
1987, the Board affirmed the December 1985 decision, finding
no obvious error. Those decisions of the Board are final.
At this point, it should be noted that the Board has, in a
separate decision issued simultaneously with this decision,
determined that the veteran has not presented viable claims
of clear and unmistakable error in either of the 1985 or 1987
Board decisions. Those decisions, therefore, are final.
38 C.F.R. § 20.1409(c) (1999).
Initially, the Board notes that the veteran's contention that
a section of Public Law 97-37 provides that the effective
date of an award made pursuant to that law "shall be the
date of application or the date on which the veteran became
permanently and totally disabled if the veteran applies for a
retroactive award within one year of such date whichever is
to the advantage of the veteran," is misplaced and
unavailing. First, Public Law 97-37 does not contain the
provision claimed by the veteran. Second, the language
quoted by the veteran appears at 38 C.F.R. § 3.400(b)(1)(i),
regarding the assignment of the effective date for disability
pension, where the claim was filed prior to October 1, 1984.
That regulatory section is not applicable in this case for
two reasons: 1) it concerns the effective date for disability
pension, rather than compensation, which is the type of
benefit awarded with service connection, and 2) that section
pertains to benefits granted pursuant to original claims,
rather than following the submission of new and material
evidence, as in this case.
Next, the Board finds that no communication that was received
from the veteran between 1987 and 1997 can reasonably be
construed as expressing an intent to reopen his service
connection claim. No additional evidence concerning service
connection for a throat disorder, to include laryngeal
cancer, on any theory of entitlement, was received during
that period.
The RO wrote to the veteran in December 1996 inviting him to
attend a POW Outreach Meeting in February 1997. He responded
in a letter received on January 2, 1997, that he had no
intention of attending the meeting because he considered the
meeting to be a propaganda ploy. That letter from the
veteran, while it contained no new evidence or contentions
and did not express any intent to file a claim based on any
new theory of entitlement, was apparently accepted by the RO
as an attempt to reopen the claim and therefore accepted
January 2, 1997 as the effective date of service connection
which was granted by subsequent rating action..
Subsequently, the RO again wrote to the veteran to advise him
of a recent opinion by VA's General Counsel that provided for
the possibility of service connection for his condition as
secondary to smoking during service. The RO's letter also
indicated to the veteran that "your condition may be related
to smoking during service" and instructed him as to the type
of evidence that would be helpful if he wished to pursue such
a claim. He was told that the RO would begin processing his
claim when he provided instructions.
The Board notes that the RO's letter is hand-dated January 3,
1997. However, the General Counsel Opinion referred to in
that letter (VAOPGCPREC 19-97) was not issued until May 13,
1997. Nevertheless, the veteran was notified of the thrust
of the opinion that was subsequently issued. Any
"irregularity" in the date of the RO's letter is not
relevant to this case.
The veteran wrote to the RO in a letter received on October
8, 1997, requesting a social survey in conjunction with his
claim. In another letter from the veteran received on
November 24, 1997, he reported that he had begun smoking
during service. He indicated that he had never before
claimed that smoking was a contributing factor in his
problems, but that he now realized that it could have been.
Following the December 1997 VA compensation examination and
the opinion from a VA examiner as to the etiology of the
veteran's laryngeal cancer, a rating decision in March 1998
established service connection for the disability, effective
from January 2, 1997, the date of receipt of the veteran's
January 1997 letter stating that he would not attend the POW
Outreach meeting in February 1997.
Service connection for postoperative residuals of a
laryngectomy for cancer of the larynx was based primarily on
a medical opinion received in December 1997 that attributed
the veteran's laryngeal cancer to his smoking during service
and to the malnutrition he endured during his captivity as a
POW. Accordingly, it is clear that his "entitlement arose"
in the 1960s, when he was diagnosed with laryngeal cancer.
The main question, therefore, involves the date of receipt of
the veteran's claim for service connection, because the
proper effective date for service connection cannot be
earlier than that date.
The Board notes that the United States Court of Appeals for
the Federal Circuit held in Routen v. West, 142 F.3d 1434
(Fed. Cir. 1998), that a "liberalizing change" in the law
creates a new basis of entitlement, permitting the veteran to
make a new claim for benefits. Assignment of an effective
date pursuant to a new claim for benefits is governed by the
provisions of 38 C.F.R. § 3.400(b)(2). However, the cited
General Counsel Opinion did not represent a change in the
law, but merely constituted an interpretation of existing
law. Accordingly, no new basis of entitlement was created by
that Opinion.
In Ashford v. Brown, 10 Vet. App. 120, 124 (1997), the United
States Court of Appeals for Veterans Claims (Court) held,
essentially, that a claim for service connection under a new
etiological theory requires new and material evidence to
reopen the previously and finally denied claim. In the
instant case, the veteran's contention that his smoking in
service caused his laryngeal cancer presents merely a new
etiological theory of entitlement. Moreover, the December
1997 VA examiner's opinion supported that new theory.
Further, the VA examiner's opinion that the malnutrition that
the veteran endured as a POW helped cause his throat cancer
clearly provided new and material evidence, because the 1985
Board decision denied service connection, in part, on the
basis that there was no evidence that malnutrition caused his
throat cancer. Therefore, his claim for an earlier effective
date for the grant of service connection is governed by the
regulations pertaining to reopened claims.
In general, the effective date for a grant of service
connection after a final disallowance shall be fixed in
accordance with the facts found, but shall not be earlier
than the date of receipt of application therefor.
38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(q)(1)(ii).
The Board notes that the regulations require that a claim be
specific and in writing and indicate an intent to apply for
one or more benefits under the laws administered by VA.
38 C.F.R. §§ 3.151, 3.155 (1999).
The veteran's October 1997 letter requested a social survey
in conjunction with his "case." And his November 1997
letter specifically refers to his having started smoking
while in service. Those two letters, read in conjunction
with the RO's letter advising him of the recent General
Counsel Opinion, reasonably reflect the veteran's intent to
apply to reopen his claim for service connection based on the
legal theory of service connection for his disability due to
his smoking during service. No communication from the
veteran received prior to the January 1997 letter, however,
contains any indication of such an intent to file a claim
based on smoking during service. And he had submitted no new
evidence in support of his previously denied claim (which was
based both on direct and presumptive service connection on
account of his status as a veteran of a war and as a former
POW) prior to the November 1997 letter. Therefore, the Board
finds that there is no law or factual basis upon which an
effective date earlier than January 2, 1997 could be
predicated. 38 C.F.R. § 3.400(q)(1)(ii).
In determining whether a claimed benefit is warranted, VA
must determine whether the evidence supports the claim or is
in relative equipoise, with the veteran prevailing in either
event, or whether the preponderance of the evidence is
against the claim, in which case the claim is denied.
38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49
(1990). In this case, the Board finds that the preponderance
of the evidence is against the veteran's claim.
ORDER
An effective date earlier than January 2, 1997, for service
connection for postoperative residuals of a laryngectomy for
cancer of the larynx is denied.
C. W. Symanski
Member, Board of Veterans' Appeals